Reply to Lively/Baldoni Lawsuit Part 2

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[quote=Anonymous][quote=Anonymous][quote=Anonymous]Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.[/quote]

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion. [/quote]

I agree it doesn't indicate which way he will rule, only that it indicates his decision will be more than just a quick dismissal based on extraterritoriality. There is no reason for him to do a "full legal analysis" if he's dismissing for extraterritoriality because his analysis would have no weight or bearing. He's a federal judge in a circuit that doesn't even contain CA. If his conclusion is that 47.1 doesn't apply in this case, then he's certainly not going to engage in legal analysis of a novel, untested CA law as applied to the facts of this case.

It's different than when he dismissed the 10 Lively claims because in that situation he was allowing three claims (the retaliation claims) to go forward. In order for the retaliation claims to survive, that had to be based on a good faith complaint of SH by Lively, even if those SH claims ultimately failed because she wasn't an employee. That's why he went through the SH claims and identified those that Lively could reasonably have believed to have been SH if she was an employee, because those served as the basis of her retaliation claims. If he'd actually found that none of her SH claims met the threshold for SH even if she were an employee, then he would also have dismissed the retaliation claims.

The same situation does not apply here. He will either be granting this motion or denying it, and if he is denying for a technical reason like extraterritoriality, there is no reason for him to do an analysis of which side bears the burden of proof for the elements of 47.1. In fact it would be confusing for him to do that.

Which is why I now think it's highly unlikely he'll dismiss for extraterritoriality. He may still deny the motion, but it appears he intends to at least get to the stage of evaluating whether the facts of this case meet the requirements of 47.1.[/quote]

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